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Court Rejects Challenge to OSHA’s Fall Protection Directive

On April 7, the U.S. Court of Appeals for the Seventh Circuit dismissed the National Roofing Contractors Association&#8217;s (NRCA) petition for review of OSHA&#8217;s December 2010 directive on the use of fall protection in residential construction. The directive withdrew an earlier one that allowed certain residential construction employers to bypass some fall protection requirements.

OSHA’s new directive, Standard 03-11-002, rescinded the Interim Fall Protection Compliance Guidelines for Residential Construction, Standard 03-00-001, which was issued in 1999. Prior to the issuance of this new directive, Standard 03-00-001 allowed employers engaged in certain residential construction activities to use specified alternative methods of fall protection rather than the conventional fall protection required by the residential construction fall protection standard.

NRCA “Disappointed” by Dismissal

NRCA’s petition argued OSHA did not follow appropriate rulemaking procedures when it eliminated an option that has been in place for 15 years; acted without any evidence to suggest slide guards are not an effective method for fall protection; and failed to take into account the effect the new rules would have on small businesses. OSHA argued the rule is not a new standard and is, therefore, beyond the reach of an appeal.

The court agreed with OSHA, concluding that the rule’s 1999 rewrite and 1995 predecessor amounted to “an exercise of prosecutorial discretion” and not a new standard.

“We were extremely disappointed by the court’s decision, even knowing that taking on the government always is a long shot,” said NRCA Executive Vice President Bill Good. “The new OSHA rule now will take effect in just over 2 months, so we will do our best to help all members prepare. We also hope to meet with OSHA officials to get a better understanding of their enforcement plans.”

No. 1 Cause of Construction Fatalities

Data from the department’s Bureau of Labor Statistics estimates that an average of 40 workers are killed each year as a result of falls from residential roofs. One-third of those deaths represent Latino workers, who often lack sufficient access to safety information and protections. Latino workers comprise more than one-third of all construction employees.

“Fatalities from falls are the number one cause of death in construction,” said Michaels. “These deaths are preventable, and we must prevent them.”

Under the new directive, all residential construction employers must comply with 29 Code of Federal Regulations 1926.501(b)(13). Where residential builders can demonstrate that traditional fall protection is not feasible, 29 CFR 1926.501(b)(13) still allows for alternative means of providing protection.

Construction and roofing companies have until June 16 to comply with the new directive. OSHA has developed training and compliance assistance materials for small employers and will host a webinar offering information on complying with the standard.